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In re B.J.

February 15, 2007

IN RE B.J., BR.J. AND E.J., L.J., APPELLANT.


Appeals from the Superior Court of the District of Columbia (TPR-1239-97) (TPR-1240-97) (TPR-1330-98) (Hon. John M. McCabe, Magistrate Judge Hon. Kaye K. Christian, Trial Judge).

The opinion of the court was delivered by: Thompson, Associate Judge

Submitted November 21, 2006

Before FISHER and THOMPSON, Associate Judges, and NEBEKER, Senior Judge.

L.J., the biological mother of E.J., B.J., and Br.J., challenges the order of the Superior Court Family Division terminating her parental rights with respect to the three children. She argues that service of process on her relating to the termination of parental rights ("TPR") action was defective. She also argues that the trial court abused its discretion by not hearing testimony from E.J., the oldest of the three children, about what he believed was in his best interests, and by failing to give adequate weight to appellant's choice of a caretaker for B.J. and Br.J.

"We review the trial court's legal determinations de novo and its findings of fact under a clearly erroneous standard." In re A.C.G., 894 A.2d 436, 439 (D.C. 2006). We find no error and therefore affirm the TPR order.

I. Factual and Procedural History

The government filed its motion to terminate appellant's parental rights with respect to E.J., B.J., and Br.J. on January 23, 2004.*fn1 According to the petition, the District of Columbia Child and Family Services Agency ("CFSA") discovered that on September 29, 1997, appellant had abandoned E.J. (born on September 1, 1992) and B.J. (born on January 6, 1997) in the front yard of the home of appellant's maternal cousin Le.J. Le.J. informed CFSA that she was already caring for three children with TANF (Temporary Assistance for Needy Families) assistance and could not care for E.J. and B.J. without additional assistance. Thereafter, on October 11, 1997, CFSA filed a neglect petition.

After the commencement of neglect proceedings, E.J. and B.J. were placed under protective supervision in appellant's home. See D.C. Code § 16-2301(19) (1981). On October 2, 1998, CFSA 3 learned that appellant had left E.J., B.J. and Br.J. (born on April 19, 1998) alone with L.J.'s minor sibling. Protective supervision was terminated, and E.J., B.J. and Br.J. were removed from appellant's care for lack of proper parental care and supervision. Appellant stipulated that she could not provide proper care for the three children, in part because of her abuse of crack cocaine. All three children were placed into foster care.

After attempting to reunify the family, CFSA concluded that reunification was not a viable option and that it was in the children's best interests to have appellant's parental rights terminated to help facilitate adoption. In initiating TPR proceedings, CFSA alleged that appellant visited her children only sporadically, failed consistently to attend drug abuse treatment, and remained in contact with an abusive partner. When appellant appeared for a status hearing in the neglect case, the courtroom clerk served her with the TPR petition. Thereafter the court held a bench trial on the TPR petition over a several-day period during October, November and December 2004.

At the conclusion of the TPR hearing, Magistrate Judge John McCabe found, in a December 16, 2004 order, that "overwhelming evidence was presented that supports termination of parental rights in this case." He found that over the seven-year period before the TPR hearing, appellant had continuously evaded the completion of drug treatment programs, parenting classes, and counseling for coping with domestic violence. He noted that four other of appellant's children had been removed from her home on January 16, 2003, following appellant's absence from the home due to an admitted drug binge.*fn2 He also noted that appellant had tested positive for cocaine during the time of the TPR proceedings, and concluded that appellant remained "at high risk for continued illegal drug use." Judge McCabe noted that appellant had failed to attend multiple days of the eleven-day hearing, and that when she did appear, she exhibited "immaturity and a significantly low frustation tolerance, revealed through verbal reactions (audible to the Court) and physical reactions to the testimony of witnesses."

Judge McCabe further noted that after B.J., E.J., and Br.J. were placed into foster care, appellant's visitation with them was spotty at best, despite the fact that visitation was available through social workers. At times appellant did not request visitation at all, while at other times she would schedule visitation and then fail to appear at the designated time and place. Long periods existed during which appellant made no contact with the children at all.

Judge McCabe noted in his findings that B.J. and Br.J. had a warm and loving nearly-three-year bond with their foster parents, and that E.J. had a similar bond with his foster parent, with whom he had resided for close to two and a half years. He noted that because of B.J.'s and Br.J.'s young ages, neither child expressed detailed views on their best interests, and that there was no evidence that the two youngest children had expressed any desire for a closer relationship with their mother. Judge McCabe acknowledged E.J.'s expressed interest in reunification with his mother, but 5 found that it was in E.J.'s best interests not to reside with appellant because of her continuous problems with drug abuse and domestic violence.

Judge McCabe considered appellant's cousin, Le.J., as a possible permanent placement for B.J. and Br.J. Although noting that Le.J. had testified during the hearing that she would consider adopting or filing for guardianship of B.J. and Br.J., Judge McCabe found that placement with her would not be in the best interests of the children because it would likely mean that the children would have regular contact with appellant, creating a substantial risk that they would be exposed to drug abuse, domestic violence, and the general emotional instability overshadowing appellant's life. Judge McCabe also noted that there were no other family members with whom the children had a substantial bond.

Appellant timely filed a motion for reconsideration of Judge McCabe's order terminating her parental rights. The Honorable Kaye K. Christian reviewed Judge McCabe's Findings of Fact and Conclusions of Law and Order Terminating Parental Rights and, on February 23, 2005, affirmed the order in all ...


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